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996 F.

2d 222


Receiver of
Territory Savings & Loan Association, Plaintiff-Appellant,
REGIER CARR & MONROE, Defendant-Appellee.
Arthur Andersen & Co. S.C., Coopers & Lybrand, Deloitte &
Touche, Grant Thornton, KMPG Peat Marwick, & BDO
Seidman, Amici Curiae.
No. 92-7109.

United States Court of Appeals,

Tenth Circuit.
May 25, 1993.

Edward O'Meara, F.D.I.C., Washington, DC (Claire V. Eagan, Susan L.

Gates, Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa, OK, Ann
S. DuRoss, F.D.I.C., Washington, DC, on the brief) for plaintiff-appellant.
John R. Gerstein, Ross, Dixon & Masback, Washington, DC (Lona T.
Perry, Ross, Dixon & Masback, Washington, DC, George S. Corbyn, Jr.,
Phillip G. Whaley, Ryan, Corbyn & Geister, Oklahoma City, OK, with
him on the brief) for defendant-appellee.
Stanley J. Parzen & Roger J. Jones, Mayer Brown & Platt, Chicago, IL &
Rex E. Lee, Sidley & Austin, Washington, DC (of counsel, Donald
Dreyfus, Counsel, Arthur Andersen & Co., S.C., Harris J. Amhowitz,
Gen. Counsel, Coopers & Lybrand, Howard J. Krongard, Gen. Counsel,
Deloitte & Touche, Margaret Maxwell Zagel, Gen. Counsel, Grant
Thornton, Leonard P. Novello, Gen. Counsel, KMPG Peat Marwick, &
Scott M. Univer, Gen. Counsel, BDO Seidman) for amici curiae Arthur
Andersen & Co. S.C., Coopers & Lybrand, Deloitte & Touche, Grant
Thornton, KMPG Peat Marwick, & BDO Seidman.
Before BALDOCK and KELLY, Circuit Judges and OWEN, District

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant FDIC appeals the district court's grant of summary

judgment, arguing that the statute of limitations does not bar its cause of action.
Our jurisdiction arises under 28 U.S.C. 1291 and we affirm.


Territory Savings & Loan Association of Seminole, Oklahoma (Territory) hired

defendant-appellee accounting firm (Regier) as an independent outside auditor
in 1982. After Regier issued a report critical of Territory's management for the
fiscal year (FY) ending March 31, 1983, Territory hired Robert L. Thomason
as its president.

On November 29, 1984, the board authorized Thomason to trade negotiable

instruments without prior authorization, but required that Thomason notify the
board of any activity which resulted in a loss or gain greater than two percent.
In addition, a policy statement described permitted activities, authorizations and
restrictions, and control procedures relating to financial futures trading and
financial options contracts. Thomason engaged in speculative trading practices
which resulted in significant losses to Territory. Thomason also approved loans
that were undercollateralized and improperly underwritten.

Regier's audit for Territory's FY 1984 was presented to the board on December
17, 1984. The opinion letter was unqualified, but the financial statements
indicated a net operating loss of $458,069. In a management letter, Regier
expressly noted that certain accounting records were not reconciled, escrow
accounts were not properly maintained and loan underwriting, while
undergoing improvements, still required close monitoring. Regarding
Territory's new leadership, Regier stated that it could not attempt to affix blame
for the weaknesses with either previous management or Thomason.

In January 1985, Territory's board received a report from the Federal Home
Loan Bank Board which was highly critical of the operation of the bank. In
response, Territory engaged Regier to perform certain consulting work,
including reconciling general ledger accounts, assisting Territory personnel in
recording transactions, and reviewing Territory's reports for compliance with
federal regulations and proper methodology. In July 1985, Territory's board was
advised that Territory had suffered a "deferred loss on investment" in the
amount of $1.6 million, but believed the loss would be amortized over several

The board became concerned about Thomason's trading practices and, in late
1985, curtailed these activities. During the December 17, 1985 board meeting,
representatives of Regier reported that a loss of approximately $1.4 million in
futures trading would be reflected in the FY 1985 financial statements. The
board voted unanimously to request Thomason's resignation.

On June 29, 1987, Territory commenced an action against several brokers and
brokerage firms. The complaint was amended on December 23, 1987 to include
Regier as a defendant alleging liability for its failure to alert Territory to the
mismanagement of Thomason. FSLIC was appointed as the receiver for
Territory on January 29, 1988 and substituted as the plaintiff in the action
against Regier. By operation of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 (FIRREA), the receivership for Territory was
transferred to the FDIC on August 9, 1989. 12 U.S.C. 1441a(b)(3)(A). The
district court severed the FDIC's claims against Regier and granted summary
judgment in favor of Regier on all claims. The district court concluded that (1)
as a matter of law, Thomason's knowledge of his own activities was imputable
to the board, eliminating the necessary element of reliance on the audit report,
and (2) alternatively, the statute of limitations for tort, applicable to all claims
of professional malpractice under Oklahoma law, barred the action.


Because this is an appeal from a grant of summary judgment, our review is de

novo and we apply the same legal standard used by the district court in
evaluating the summary judgment motion, namely Fed.R.Civ.P. 56(c). Applied
Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th
Cir.1990). See also Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ("Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is 'no genuine issue for trial.' ") (citing First Nat'l Bank v.
Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569

In Funnell v. Jones, 737 P.2d 105, 107 (Okla.1985), cert. denied, 484 U.S. 853,
108 S.Ct. 158, 98 L.Ed.2d 113 (1987), the court held that "an action for
malpractice ... though based on a contract of employment, is an action in tort
and is governed by the two-year statute of limitations...." Recently, in Wynn v.
Estate of Holmes, 815 P.2d 1231, 1233 (Okla.Ct.App.1991), this same principle
was applied to a claim of accounting malpractice. The limitation period "begins
to run from the date the negligent act occurred or from the date the plaintiff
should have known of the act complained of." Funnell, 737 P.2d at 107.


FDIC relies on Great Plains Fed. Sav. and Loan Ass'n v. Dabney, 846 P.2d
1088 (Okla.1993), to support its position that its claim could sound in either
contract or tort. However, that case reaffirmed that "if the alleged contract of
employment merely incorporates by reference or by implication a general
standard of skill or care which a defendant would be bound independent of the
contract a tort case is presented governed by the tort limitation period." Id. at
1092. The engagement letter incorporated by reference "generally accepted
auditing standards," Aplt.App. at 222, and proposed nothing beyond the general
standard of care for certified public accountants. Although FDIC delineates the
various obligations mentioned in the letters, the list consists of nothing beyond
Regier's normal duty of care. The principles of Wynn therefore control and
FDIC's suit is subject to the two-year statute of limitations applicable to tort


FDIC asserts that had Territory been advised of Thomason's wrongful trading
activities, it would have fired him sooner and averted further losses caused by
Thomason. The crux of this argument is that the malpractice of Regier deprived
Territory's board of timely knowledge concerning Thomason and the losses
caused by him. However, Territory's board voted unanimously to ask for
Thomason's resignation on December 17, 1985 "after it became aware that his
trading activities ... had resulted in actual losses of $1.4 million and that loan
losses of $1.6 million were necessary." Aplt.Brief at 10. See also Aplt.App. at
551 (Minutes of Dec. 17, 1985 Board Meeting).


We may deduce that, even if Thomason's mismanagement was concealed prior

to December 17, 1985, at that point the board became aware of Thomason's
activities and acted accordingly. Territory's board also knew that Regier had not
apprised them of the extent or nature of Thomason's trading losses before that
date. If, as alleged in the complaint, Regier's failure to notify the board of these
losses earlier amounted to malpractice, then Territory was on inquiry notice of
this malpractice at least by December 17, 1985. This started the running of the
two-year statute of limitations period. Because this action was not commenced
prior to December 17, 1987, it is barred.


We conclude that the claims against Regier were filed by Territory after the
statute of limitations had run. After the suit was commenced, the FSLIC, and
later the FDIC, was substituted as plaintiff. The FDIC argues that the enactment
of FIRREA, with its more generous limitations provision, saves this cause of
action. FIRREA provides that a longer statute of limitation will apply to claims
brought by the FDIC and that the statute of limitations will not commence until
the date the receiver is appointed.1


One circuit court and several district courts specifically addressing this issue
have held that the limitation period of FIRREA may not apply retroactively to
revive a claim that is already barred by a state statute of limitations. FDIC v.
McSweeney, 976 F.2d 532, 534 (9th Cir.1992) ("The FDIC may not ... revive
claims for which the state limitations period has expired before the date of
federal receivership."), cert. denied, --- U.S. ----, 113 S.Ct. 2440, 124 L.Ed.2d
658 (1993); FDIC v. Bancinsure, Inc., 770 F.Supp. 496, 499 (D.Minn.1991)
(FIRREA may apply retroactively so long as the claim was not "stale" when
filed); Resolution Trust Corp. v. Krantz, 757 F.Supp. 915, 920-22
(N.D.Ill.1991) (stale claims may not be revived by transfer to a federal agency),
reconsideration denied, 1991 WL 35514 (1991). We agree with the reasoning
of these courts and with the Third Circuit's reasoning in FDIC v. Hinkson, 848
F.2d 432 (3d Cir.1988). Although Hinkson predated FIRREA, it clearly
established that the government should take claims subject to the state statute of
limitations unless there is clear Congressional intent to the contrary:


[S]tate limitations are ... relevant in determining a claim's viability at the time
the federal agency gains eligibility to sue. If the state statute of limitations has
expired before the government acquires a claim, it is not revived by transfer to
a federal agency. In Guaranty Trust Co. v. United States, 304 U.S. 126, 142, 58
S.Ct. 785, 793, 82 L.Ed. 1224 (1938), the Supreme Court held that the federal
government suffers no deprivation in such a circumstance. "[T]he proof
demonstrates that the United States never acquired a right free of a pre-existing
infirmity, the running of limitations against its assignor, which public policy
does not forbid." See also [FDIC v.] Consolidated Mortgage & Fin. Corp., 805
F.2d at 17-18 n. 4 [ (1st Cir.1986) ]; [FDIC v.] Cardona, 723 F.2d at 134 [ (1st
Cir.1983) ].


Hinkson, 848 F.2d at 434. See also FDIC v. Former Officers & Directors of
Metropolitan Bank, 884 F.2d 1304, 1309 n. 4 (9th Cir.1989), cert. denied, 496
U.S. 936, 110 S.Ct. 3215, 110 L.Ed.2d 662 (1990). "Were this not the law, then
the FDIC, FSLIC, or RTC could, by the mere act of taking conservatorship of a
bank, revive claims relating to acts done during the Great Depression." Krantz,
757 F.Supp. at 920. Such a result would conflict with the function of statutes of
limitation, which is to ensure that claims are litigated in a timely manner. We
are not persuaded by FDIC's argument that the legislative history of FIRREA
indicates an intent that the statute of limitations provisions apply to stale


The statute of limitations having barred the FDIC's claim, we find it

unnecessary to resolve the issue of whether Thomason's knowledge could be

imputed to the board to preclude the element of reliance.


Honorable Richard Owen, Senior United States District Judge for the
Southern District of New York, sitting by designation.

12 U.S.C. 1821(d)(14)(A) provides:

Notwithstanding any provision of any contract, the applicable statute of
limitations with regard to any action brought by the Corporation as conservator
or receiver shall be-(i) in the case of any contract claim, the longer of-(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim, the longer of-(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
12 U.S.C. 1821(d)(14)(B) further allows that "the date on which the statute of
limitation begins to run on any claim ... shall be the later of--(i) the date of the
appointment of the Corporation as conservator or receiver; or (ii) the date on
which the cause of action accrues."